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A/HRC/WGAD/2023/70

Opinion No. 70/2023 concerning Hussein Abdelrazek Abdelhafez Ismail and Mohamed Abdelrazek Abdelhafez Ismail (Egypt)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2023-11-17 · en UN

Opinion; Subjects: EGYPT, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.24-01169 (E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-eighth session, 13–17 November 2023

Opinion No. 70/2023 concerning Hussein Abdelrazek Abdelhafez Ismail

and Mohamed Abdelrazek Abdelhafez Ismail (Egypt)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work, 1 on 25 July 2023 the Working Group

transmitted to the Government of Egypt a communication concerning Hussein Abdelrazek

Abdelhafez Ismail and Mohamed Abdelrazek Abdelhafez Ismail. The Government replied to

the communication on 21 September 2023. The State is a party to the International Covenant

on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2023/70

General Assembly

Distr.: General

1 February 2024

Original: English

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1.

Submissions

(a)

Communication from the source

4.

The case summarized hereafter has been reported to the Working Group as follows.

5.

Hussein Abdelrazek Abdelhafez Ismail is an Egyptian national, born on 1 February

1983. Prior to his arrest, he worked as a merchant in a mobile store. He is married and the

father of two children. He usually resides in the Agouza Governorate of Giza.

6.

Mohamed Abdelrazek Abdelhafez Ismail is an Egyptian national, born on 5 July 1979.

Prior to his arrest, he was an administrator in a contracting company. He is married and the

father of two children. He usually resides in the Agouza Governorate of Giza.

(i)

Context

7.

According to the source, Mr. Hussein Ismail and Mr. Mohamed Ismail were both

arrested as a reprisal against the work of one of their relatives, a journalist living abroad

wanted by the Government of Egypt for having expressed his views on government policies

in his professional capacity.

8.

The source describes a pattern by which Egyptian authorities prosecute and punish

individuals whose relatives are opponents or critics of the Government, journalists or human

rights defenders, whether such relatives are living abroad or in custody in Egypt. According

to the source, these measures are used to exert pressure on opponents and critics or to retaliate

against them by targeting their relatives, in violation of the Constitution of Egypt. The source

notes that article 95 of the Constitution provides that penalties are personal, that crimes and

penalties may only be based on a judicial ruling, and that penalties may only be imposed for

acts committed after the date on which the relevant law entered into effect.

(ii)

Arrest and detention

9.

The source reports that on 26 December 2013, at around 2 a.m., State security forces

wearing civilian clothes and face masks, and accompanied by uniformed police officers,

entered the family home of Mr. Hussein Ismail and Mr. Mohamed Ismail. Reportedly,

without showing any arrest warrant or providing a reason for the arrests, they proceeded to

arrest all the males in the family, including Mr. Hussein Ismail and Mr. Mohamed Ismail.

The arrests reportedly took place in front of other relatives. According to the source, the State

security officers also searched the house without providing a search warrant and broke and

damaged several pieces of furniture and other goods.

10.

Reportedly, following their arrest, Mr. Hussein Ismail and Mr. Mohamed Ismail were

both subjected to enforced disappearance from 26 to 30 December 2013. They were held in

an unknown location later revealed to be the State security headquarters in Al Dokki. During

their interrogations, they were reportedly only asked about their relative living abroad, the

relative’s activities and his whereabouts. Allegedly, after they were subjected to enforced

disappearance, their relatives sent the Attorney General and the Minister of the Interior

complaints, which remain unanswered.

11.

According to the source, during his enforced disappearance, Mr. Mohamed Ismail was

subjected to severe torture, which included beatings, threats, insults, and electric shocks to

his body parts. The source notes that Mr. Hussein Ismail had undergone major surgery for

two spinal issues before being arrested and that his ensuing weak condition explains why he

was not subjected to torture during his enforced disappearance.

12.

On 30 December 2013, Mr. Hussein Ismail and Mr. Mohamed Ismail reportedly

appeared before the prosecution for the first time and were accused of belonging to a terrorist

group, in a case whose legal status reportedly remains ambiguous to this day. They were

detained pending investigation in Giza Central Prison.

13.

According to the source, Mr. Hussein Ismail and Mr. Mohamed Ismail were detained

in poor conditions, which included detention in solitary confinement for two weeks without

justification, detention in overcrowded cells with poor hygiene conditions, and restrictions

on the frequency and duration of visits allowed. Allegedly, in 2014, prison authorities

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unleashed a riot police force in Giza Central Prison to punish detainees for having initiated a

hunger strike to protest against their poor detention conditions. According to the source, both

Mr. Hussein Ismail and Mr. Mohamed Ismail were beaten by the riot police force during that

incident.

14.

The source explains that both individuals were first able to see their family in

January 2014, during a ten-minute visit through wired glass.

15.

Around the middle of 2016, after having been held in pretrial detention for two years,

both individuals were reportedly transferred to Wadi Al-Natroun Prison and added to a case

publicly known as the “Giza ISIS 2 Cell” case. They were charged with attempting to

assassinate an officer, burning a police box, and possessing weapons and explosives.

Reportedly, they were both ordered into detention pending investigation and were transferred

to Fayoum Prison. According to the source, they were once again placed in solitary

confinement without any justification.

16.

The source reports that on 22 October 2017, Mr. Hussein Ismail and Mr. Mohamed

Ismail were tried in a mass trial before the Terrorism Criminal Court and were sentenced to

25 years in prison. Both individuals’ counsel reportedly filed an appeal in 2019, which was

rejected the following year.

17.

According to the source, since their sentencing, both individuals have been detained

in Al-Minya Prison where their detention conditions have worsened, particularly concerning

the hygiene conditions and the treatment they are subjected to by the prison officers. They

are reportedly allowed family visits once a month for ten minutes and the visits take place

through wired glass. Reportedly, they were last able to see their family on 20 July 2022.

18.

The source reports that Mr. Hussein Ismail suffered complications following the

surgery he had had before his arrest due to the lack of proper treatment in detention. Despite

requesting a medical assessment and access to treatment, he has reportedly never received a

medical examination. According to the source, Mr. Hussein Ismail’s lawyer filed a petition

to request his release based on his health condition and the need for him to receive proper

medical care, but the petition was rejected.

19.

With regard to Mr. Mohamed Ismail, the source is concerned that his life is in jeopardy

because of the severe deterioration of his health. His family has reportedly called for his

immediate release on medical grounds. Following the launch of a media campaign to bring

public attention and support to his case, the prison administration reportedly allowed

Mr. Mohamed Ismail to be sent to a hospital. The examining doctor stated that he had been

wrongly diagnosed and that he was actually suffering from another medical condition for

which he needed surgery. The surgery was scheduled for 17 August 2022 and was postponed

for seven months pending approval by State security.

20.

On 12 March 2023, Mr. Mohamed Ismail was finally operated on at Suzanne Mubarak

Hospital, Minya Governate. However, the source notes that following the surgery,

Mr. Mohamed Ismail’s health further deteriorated, requiring him to undergo another more

complicated operation. His relatives were reportedly able to find another surgeon willing to

operate on him at another hospital. However, the Al-Minya prison administration reportedly

refuses to discharge Mr. Mohamed Ismail for him to receive the surgery. The source

expresses concern that Mr. Mohamed Ismail may lose his life because of denial of the

necessary treatment and because of his detention conditions.

21.

The source notes that complaints were sent to the Attorney General and the Minister

of the Interior regarding Mr. Mohamed Ismail’s health condition and the necessity for him to

receive medical care. Reportedly, these complaints remain unanswered.

22.

The source explains that both individuals were tried before a terrorism circuit court,

which is a special court created at the end of 2013. The source argues that such special courts

appear to fundamentally infringe on individuals’ rights, operate to undermine the right to a

fair trial and violate many international human rights norms. It submits that the use of such

2 Da’esh (references to ISIS (Islamic State in Iraq and Al-Sham) are maintained as such when these

appear in quotation marks).

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courts should be understood as part of a broader pattern by which the authorities use terrorism

and national security legislation and mechanisms to punish and silence criticism or

expression in Egypt.

23.

The source adds that mass trials undermine the right to individual adjudication, limit

the right to access a lawyer and undermine the right of lawyers to engage in a complete and

adequate defence of their clients. It is further emphasized that State security terrorism circuit

courts are exceptional courts that often hold trials within police facilities under the

jurisdiction of the Ministry of the Interior. It argues that trials taking place under the

jurisdiction of the Ministry of the Interior subvert the right to openness and transparency of

the legal process.

(iii)

Legal analysis

24.

The source argues that the arrest and subsequent detention of Mr. Hussein Ismail and

Mr. Mohamed Ismail are arbitrary under categories I and III of the working methods of the

Working Group.

a.

Category I

25.

According to the source, the arrests of Mr. Hussein Ismail and Mr. Mohamed Ismail

lack legal basis or justification, rendering their detention arbitrary under category I.

26.

The source recalls that articles 3 and 9 of the Universal Declaration of Human Rights

protect the right to liberty. It notes that, in accordance with general comment no. 35 (2020)

of the Human Rights Committee, any person deprived of liberty is to be informed, at the time

of arrest, of the reasons for the arrest, and that this requirement applies broadly to the reasons

for any deprivation of liberty.

27.

Similarly, principle 10 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment states that anyone arrested is to be informed

at the time of the arrest of the reason for the arrest and is to be promptly informed of any

charges against him or her. The source also points to article 14 (3) of the Arab Charter on

Human Rights, which emphasizes the right of anyone arrested to be informed of the reasons

behind the arrest and of the charges under which the arrest is taking place. Article 6 of the

African Charter on Human and Peoples’ Rights further protects the right to liberty and

security of person, prohibits arbitrary arrests and detentions, and reaffirms that no one may

be deprived of their freedom except for reasons and conditions previously laid down by law.

28.

In the case at hand, the source recalls that Mr. Hussein Ismail and Mr. Mohamed

Ismail were both arrested on 26 December 2013 by State security forces wearing civilian

clothes and face masks and accompanied by uniformed police officers. The source contends

that neither Mr. Hussein Ismail nor Mr. Mohamed Ismail was shown any arrest warrant or

explained the reason for the arrest, in violation of their right to liberty.

29.

The source further argues that both individuals were subjected to prolonged arbitrary

detention on baseless charges. It notes that the detention of both individuals reflects a pattern

by which authorities systematically subject individuals to prolonged arbitrary detention on

baseless charges in an attempt to keep them indefinitely behind bars. The source notes that

Mr. Hussein Ismail and Mr. Mohamed Ismail have been imprisoned for 10 years.

30.

The source explains that after their initial arrest, they were charged with a vague

accusation of “joining a terrorist group” in a case whose legal status remains ambiguous to

this day. Reportedly, despite the absence of evidence against them, they were both kept in

pretrial detention and their detention was constantly renewed by the prosecution until they

were both eventually added to the “Gaza ISIS Cell” case.

31.

The source notes that the initial case under which they were first charged was never

mentioned again, and that Mr. Mohamed Ismail and Mr. Hussein Ismail were charged with

the attempted assassination of a police officer, burning a police van, and possessing weapons

and explosives, with no concrete evidence to substantiate those charges. The source recalls

that both individuals were sentenced to 25 years in prison following a mass trial before a

special court.

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32.

The source explains that the case of Mr. Mohamed Ismail and Mr. Hussein Ismail is

illustrative of the pattern of “rotation”, by which authorities either accuse political prisoners

under several cases or, directly after their release, charge them under a new case to keep them

indefinitely behind bars. Allegedly, in most of the new cases, the charges are a revived

version of the charges brought in the previous cases. The source explains that this practice is

used by the authorities to circumvent the two-year legal limitation on the duration of pretrial

detention, renders the detention of political prisoners arbitrary, and jeopardizes their right to

liberty.

33.

The source concludes that the authorities violated article 9 of the Covenant in so far

as they proceeded to arrest and detain Mr. Mohamed Ismail and Mr. Hussein Ismail without

presenting a warrant or explaining the reasons for the arrest, at the time of the arrest. The

source further submits that their arrest and detention violate article 9 of the Covenant since

they were arrested on the basis of insufficient evidence and were subjected to enforced

disappearance for four days.

b.

Category III

34.

The source argues that the detention of Mr. Hussein Ismail and Mr. Mohamed Ismail

is arbitrary under category III in so far as they did not benefit from a fair trial by a competent,

independent and impartial tribunal established by law, they were subjected to enforced

disappearance and acts of torture and ill-treatment, their right to family visits was violated,

they did not have access to legal counsel and their right to health was violated.

Right to a fair trial by a competent, independent and impartial tribunal established by law

35.

The source contends that the trial of Mr. Hussein Ismail and Mr. Mohamed Ismail

before a military court, namely the Terrorism Criminal Court, on 22 October 2017, violated

their right to be tried by a competent, independent and impartial tribunal established by law,

guaranteed by article 14 of the Covenant.

36.

The source submits that both individuals were sentenced to 25 years in prison

following a trial that lacked fair trial and due process guarantees. It alleges that the charges

brought against both individuals lack evidential grounding and resemble those used against

thousands of other detainees. It notes that although Mr. Mohamed Ismail and Mr. Hussein

Ismail have been detained since 26 December 2013, they were charged with having

committed a crime that allegedly took place in 2015.

37.

Furthermore, it is alleged that out of the 26 individuals charged with planning and

attempting the murder of a police officer, none of them knew each other. The source also

reports that at one interrogation session, a judge told the individuals’ lawyer not to “try too

hard”, as the verdict had already been decided upon.

38.

The source further recalls that mass trials intrinsically fall short of complying with the

principle of individual sentencing and, by their nature, undermine the right to individual

adjudication, limit the right of access to a lawyer, and undermine the right of lawyers to

engage in a complete and adequate defence of their clients. The source recalls that the Cairo

Declaration on Human Rights in Islam, adopted by Egypt in 1990, states that liability is

personal, and that sentencing must thus also be personal. The source stresses the

incompatibility of mass trials with these requirements.

39.

Moreover, the source submits that the authorities continue to misuse the special

terrorism circuit courts established at the end of 2013 to directly target human rights activists

or indirectly attack their family members. It explains that the authorities instrumentalize these

courts as a weapon against civil society, contrary to the rule of law. It recalls that although

the establishment of unique or special courts is not expressly prohibited by the Covenant or

regional human rights treaties, such courts must remain competent, independent and

impartial, they must respect fair trial standards, and must not be created to displace the

jurisdiction of ordinary courts.

40.

The source recalls that the Special Rapporteur on the promotion and protection of

human rights and fundamental freedoms while countering terrorism has called on States to

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avoid using unique or specialized courts in terrorism cases, stating that “the use of terrorism

courts to target and harass civil society is inconsistent with the rule of law”.

Enforced disappearance

41.

The source recalls that the right of persons not to undergo enforced disappearance is

considered a non-derogable right, even in a state of emergency.3 Article 17 (1) and (2) of the

International Convention for the Protection of All Persons from Enforced Disappearance

requires that people deprived of liberty be held only in an officially recognized place of

detention and that States ensure that no one is held secretly in custody. Article 18 of the

Convention further requires that States provide the detainee’s family and lawyer with

accurate information on the arrest.

42.

The source argues that following their arrest on 26 December 2013, Mr. Hussein

Ismail and Mr. Mohamed Ismail were subjected to enforced disappearance for four days,

until 30 December 2013, in an unknown location. It was later discovered that they had been

held in the premises of the State security headquarters in Al Dokki.

Right to be free from torture and ill-treatment

43.

The source argues that Mr. Mohamed Ismail was subjected to acts of torture, which

included beating, electric shocks and other forms of ill-treatment, during his enforced

disappearance. It is also alleged that Mr. Hussein Ismail was subjected to ill-treatment when

he was beaten by prison riot forces for having participated in a hunger strike to protest against

his detention conditions.

44.

The source submits that such acts are contrary to the two individuals’ right to be free

from any act that could cause severe pain or suffering, whether physical or mental, and

inflicted intentionally on a person, and thus violate article 1 of the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment and article 7 of the

Covenant. The source recalls that according to the Committee against Torture, such a right is

absolute, applies in all circumstances and may never be restricted, including in times of war

or states of emergency. The source points to general comment No. 20 (1992) of the Human

Rights Committee, in which the Committee stated that no exceptional circumstances,

including threats of terrorism or other violent crime, may be invoked to justify torture or other

ill-treatment and that such prohibition applies irrespective of the offence allegedly committed

by the accused person.

Right to family visits

45.

The source notes that the right of detainees to communicate with the outside world

and be visited by their family is a fundamental safeguard against any attempts by the

authorities to violate the detainee’s human rights, including through torture or other

ill-treatment and enforced disappearance. The source recalls article 17 (2) (d) of the

International Convention for the Protection of All Persons from Enforced Disappearance,

whereby detained and imprisoned people must be able to communicate and be visited by their

families, and notes that the right to receive visits applies to all detainees, regardless of the

offence of which they are suspected or accused. Under principle 19 of the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment, this right

should be subject only to reasonable conditions and restrictions as specified by law or lawful

regulations.

46.

The source argues that the Government violated the right both of Mr. Hussein Ismail

and of Mr. Mohamed Ismail to receive family visits. Allegedly, while in pretrial detention in

Giza Central Prison, both individuals were placed in solitary confinement for two weeks,

with no justification. Furthermore, they were reportedly detained in harsh conditions,

including overcrowding and poor hygiene, and were subjected to restrictions regarding the

time and the duration of visits. When they were not detained in solitary confinement, they

3 Principle 5 of the Basic Principles on the Independence of the Judiciary.

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were reportedly only allowed one visit per month through wired glass for 10 minutes.

According to the source, their family was first able to visit them in January 2014.

Right to assistance of legal counsel

47.

The source recalls that principle 15 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment provides that communication by the

detained or imprisoned person with the outside world, particularly the detainee’s family or

counsel, must not be denied for more than a matter of days. It notes that in accordance with

general comment No. 32 (2007) of the Human Rights Committee, a detainee has the right to

have prompt access to legal counsel, meaning that the lawyer must be able to have private

communications and meetings with the detainee and to attend all investigations without

interference or restrictions. The source further notes that principle 2 of the Basic Principles

on the Role of Lawyers provides that it is the duty of the competent authorities to ensure

lawyers’ access to appropriate information, files and documents in their possession or control

in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such

access must be provided at the earliest appropriate time.

48.

In this regard, the source alleges that although Mr. Mohamed Ismail and Mr. Hussein

Ismail had a lawyer, their lawyer was not allowed to argue against the accusations brought

by the prosecution. The source notes that as in many trials that occur before special courts,

the lawyer had limited ability to engage in a full and effective defence. The source also recalls

that after one of the interrogation sessions, a judge told the individuals’ lawyer not to “try too

hard” as the verdict had already been decided and would not be changed. The source

considers that this assertion is bolstered by the fact that the individuals’ appeal was rejected

in 2020.

Right to health

49.

The source recalls that every detainee has the right to the highest attainable physical

and mental health standards. It notes that this right extends not only to timely and appropriate

health care but also to underlying determinants of health, such as adequate food, water and

sanitation. It adds that sick prisoners whose health conditions require specialist treatment

must be transferred to specialized institutions or civil hospitals and that failure to provide

access to adequate health care violates the right to health.

50.

Allegedly, Mr. Hussein Ismail and Mr. Mohamed Ismail have been denied proper

medical care in prison and their health has deteriorated. The source points to the poor

detention conditions they are subjected to, including being placed in solitary confinement for

two weeks without justification. The source submits that Mr. Hussein Ismail suffered

complications from the surgery he had prior to being arrested because he could not access

proper medical care in detention. Reportedly, he has been systematically denied a medical

examination, despite his many requests for a medical assessment and treatment.

51.

Regarding Mr. Mohamed Ismail, the source reports that his health is rapidly

deteriorating. It notes that after he was examined by the prison doctor, it was recommended

that he have a CAT scan in an external hospital, which the prison administration refused.

Furthermore, Mr. Mohamed Ismail is currently in need of complicated surgery for which his

family reportedly found a surgeon at Assiut General Hospital. However, it is reported that

the prison administration is refusing to discharge him, and that Mr. Mohamed Ismail is

therefore unable to access the medical treatment he needs. The source is concerned that

should his medical condition continue to be ignored by prison authorities, Mr. Mohamed

Ismail may lose his life.

(b)

Response from the Government

52.

On 25 July 2023, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group requested

the Government to provide, by 25 September 2023, detailed information about the situation

of Mr. Hussein Ismail and Mr. Mohamed Ismail, and to clarify the legal provisions justifying

their continued detention, as well as its compatibility with the obligations of Egypt under

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international human rights law, and in particular with regard to the treaties ratified by the

State.

53.

In its reply, dated 21 September 2023, the Government stated that it affirmed its

sincere desire for positive engagement with the communications of the Working Group on

Arbitrary Detention. It is committed to transparency and the rectification of any

misconceptions that may have been built on inaccurate information, and submits as follows.

54.

The Constitution of Egypt, issued in 2014, guarantees freedom of thought, opinion

and expression. Article 65 of the Constitution stipulates that “freedom of thought and opinion

is ensured, and every individual has the right to express their opinion verbally, in writing,

through imagery, or through other means of expression and publication”. Furthermore,

article 71 of the Constitution states that imposing censorship on Egyptian newspapers and

media – confiscating them, suspending them or closing them in any way – is prohibited,

except for specific censorship during times of war and public mobilization. The same article

also prohibits the imposition of penalties that restrict personal freedom for crimes committed

through publication or publicly, except in cases of incitement to violence, discrimination

among citizens, or insulting individuals’ honour, for which the law specifies the penalties.

These articles are in line with articles 19 and 20 of the Covenant, which was adopted by the

General Assembly and to which Egypt acceded in 1997 and ratified through Presidential

Decree No. 536 of 1981.

55.

In this context, Egyptian legislators adopted Law No. 180 of 2018 concerning the

regulation of the press and the media. Articles 2 and 3 of Law No. 180 stipulate that the State

guarantees freedom of the press, the media, printing, and paper and electronic publishing,

both audio and visual. It is also prohibited in any way to impose censorship on Egyptian

newspapers and media, to confiscate them, to suspend them or to close them.

56.

On the other hand, article 4 of Law No. 180 stipulates that it is prohibited for the press,

media outlets or electronic websites to publish or broadcast any material or advertisement

whose content contradicts the provisions of the Constitution, incites violation of the law,

violates the obligations stated in the code of professional ethics, contravenes public order or

public morals, or promotes discrimination, violence, racism or hatred.

57.

In this regard, the Supreme Constitutional Court4 has ruled that freedom of expression,

as guaranteed by the Constitution, is the cornerstone of any democratic system. It is the

fundamental principle upon which a democracy is built, and any interference with it is

tantamount to denying the fact that freedom of expression cannot be separated from its

means. The direct methods of its exercise must be linked to its objectives. No one should

hinder its content or contradict the intended purposes of its establishment. Instead, it should

be upheld with an acceptance of its consequences, and no one should be compelled to silence

another, even by the force of the law.

58.

While freedom of expression enjoys protection in the Egyptian legal system, it is not

an absolute freedom. This is because its impact extends beyond the individual expressing

their opinion and may affect others and even society as a whole. Therefore, it is permissible

to restrict it to prevent violation of the rights of others.

59.

As concerns the legal procedures taken regarding the individuals mentioned, the

Government notes that both Mr. Hussein Ismail and Mr. Mohamed Ismail were apprehended

on the basis of an authorization issued by the Public Prosecution in Criminal Case No. 5192

of 2015, North Giza. Contrary to what was mentioned in the correspondence regarding

arbitrary arrest of the individuals, the Public Prosecution exercised its discretionary authority

after reviewing the evidence presented to it. It issued an authorization, in accordance with

the provisions of the Criminal Procedure Code, to apprehend the individuals mentioned, to

seize any devices or tools used in their crimes, and to conduct searches of their persons,

residences, and organizational headquarters established for their terrorist activities.5

60.

The interrogations of the individuals mentioned were carried out in the presence of

their legal counsel and within 24 hours of the date of their apprehension, in accordance with

4 In Constitutional Lawsuit No. 2 of 1996, during the Court’s session held on 3 February 1996.

5 Arts. 40, 46 and 91 of the Criminal Procedure Code.

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the legal time frame set forth in the provisions of article 36 (1) of the Criminal Procedure

Code. This aligns with international treaties signed by Egypt, particularly with article 9 (2)

and (3) of the Covenant. Before the interrogation commenced, the guarantees provided by

the Criminal Procedure Code for individuals subject to this procedure were observed. The

interrogators examined them to ascertain any injuries and to investigate any potential physical

harm they might have suffered at the hands of the authorities executing the arrest warrant.

They were also informed of the charges against them, which included their affiliation with a

terrorist group, their knowledge of its objectives with the intention of committing terrorist

acts and disrupting societal peace, inciting violence, spreading fear among citizens, causing

harm to the public interest, and obstructing State institutions from carrying out their

functions, ultimately aiming to incite chaos.

61.

The investigators informed Mr. Hussein Ismail and Mr. Mohamed Ismail that the

Public Prosecution, as an independent and neutral judicial body, would be conducting the

investigation procedures with them. Mr. Hussein Ismail and Mr. Mohamed Ismail were given

a full opportunity to present their objective defence, and their attending lawyers were allowed

to submit their statements, requests and defences. The Public Prosecution issued a decision

to detain them provisionally while the case was pending.

62.

The individuals underwent regular sessions during which the extension of their

provisional detention was reviewed before the competent judge. They were allowed, along

with their defence, to present oral arguments, requests and objections, in accordance with the

provisions of Security Council resolution 1373 (2001) regarding criminal procedures and the

associated safeguards in terrorism-related cases. Despite the general danger posed by

terrorism cases, the State relied on regular criminal procedures without exceptions due to the

safeguards that these provide, ensuring the right to defence for the accused, including the

presumption of innocence. Provisional detention was considered an exceptional measure,

subject to periodic review, and emphasized the right of the accused to prepare an effective

defence.

63.

Both Mr. Hussein Ismail and Mr. Mohamed Ismail were sentenced to life

imprisonment in case No. 5192 of 2015 in the Criminal Court of North Giza. They are

currently detained at the Al-Minya Correctional and Rehabilitation Centre. Based on the

foregoing, the arrest warrants and the provisional detention orders were issued on solid legal

grounds, and there is no evidence of arbitrariness.

64.

Regarding the source’s allegations of torture, the Government emphasized that a legal

confession, which is relied on by the court and is legally accepted, should be made before a

judicial authority that is free from faults. Confessions obtained by security agencies do not

hold any legal value.6 Security Council resolution 1373 (2001) on preventing the use of

territory for terrorist purposes is applied to investigations in terrorism cases, and it

underscores the complexity and the degree of specialization required in prosecuting such

cases. Accusing individuals in these cases is a complicated matter, as it necessitates a high

level of skill during investigations. The investigations must uncover the existence of the

actual terrorist organization, determine its organizational structure, identify its operational

functions, divisions or wings, including its leadership at various executive levels, the secrecy

aspects, its headquarters, and funding sources, as well as the members, roles and positions

within that structure. All of this is dependent on specialized investigative techniques and

digital evidence. These elements have formed a clear methodology for uncovering this type

of crime and establishing evidence of its existence. Relying on verbal evidence, such as

confessions by the accused individually, is not feasible. Instead, each piece of evidence is

tested individually, depending on how well it aligns with and supports other pieces of

evidence, its consistency and its lack of contradiction. Thus, the allegation of torture by

security forces during the questioning of the accused before they were presented to the

prosecution is not feasible from both an objective and a legal perspective.

6 The judgments of the Egyptian Court of Cassation have established that although information and

investigations, even when approved by the Public Prosecution, may justify the issuance of arrest and

search warrants, in the realm of conviction they merely represent the opinion of the sender and are

subject to potential validation or invalidation. It has also been established that the confession accepted

legally is the one made before the adjudicating judiciary exclusively.

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65.

In this context, the Criminal Procedure Code has established a legal framework to

protect rights and freedoms, providing provisions to safeguard them from any infringement.

The law explicitly states that criminal charges do not expire with time, especially when they

relate to crimes that violate personal freedoms and bodily integrity, as outlined in articles 117,

118, 126, 127 and 228, and repeated in article 309, and to the crimes listed in the first section

of the second chapter of the Penal Code.

66.

This legal framework is in line with the international obligations of Egypt, such as

article 4 of the African Charter on Human and Peoples’ Rights and article 5 of the Universal

Declaration of Human Rights.

67.

As regards the cases of Mr. Hussein Ismail and Mr. Mohamed Ismail, both individuals

were interviewed by the investigative authorities during the investigation proceedings and in

the presence of their lawyers. During these interviews, no visible injuries were detected to

support the claim of torture.

68.

Regarding their state of health, a review of their medical records as well as physical

examinations confirmed that their vital signs were within the normal ranges, their general

health was stable, and they were receiving all necessary medical and social care. They were

allowed regular visits from their families and lawyers, similar to other detainees.

69.

Furthermore, Egyptian laws provide all necessary guarantees for a fair trial as well as

mechanisms to appeal verdicts. The accused individuals had their right to a

non-discriminatory trial respected and were allowed to have legal representation at all stages

of the trial. The entire judicial process, starting from comprehensive investigations carried

out by the Public Prosecution to transparent and public court trials, was conducted by an

impartial and independent judicial authority.

70.

The Government reaffirms its commitment to enhancing and protecting human rights

and fundamental freedoms for all citizens, without discrimination. No one is punished unless

they commit a crime punishable by law at the time of the offence. The Government is

accountable, first and foremost, to its informed citizens, and the independent Egyptian

judiciary is the sole authority capable of verifying the veracity of any claims of human rights

violations, holding perpetrators accountable and delivering justice to victims.

(c)

Further comments from the source

71.

On 21 September 2023, the Government’s reply was sent to the source for further

comments, which the source provided on 4 October 2023.

72.

The source notes that the Government of Egypt claims that the arrest of Mr. Hussein

Ismail and Mr. Mohamed Ismail was grounded in law, as the Public Prosecution had issued

a warrant ordering their arrest after having gathered sufficient incriminating evidence for the

charge of belonging to a terrorist organization under case No. 5192 of 2015. These claims

strongly contradict the testimonies of the relatives of Mr. Hussein Ismail and Mr. Mohamed

Ismail, who were present at the time of the arrest and witnessed the entire incident. In fact,

the arrest took place at Mr. Hussein Ismail and Mr. Mohamed Ismail’s family home at

2 o’clock in the morning. According to those present, no arrest warrant or search warrant was

presented and the reason for the arrest was not provided by the arresting authorities. In the

light of the widespread, systematic and systemic way in which arrests are conducted without

warrants or legal documentation in Egypt, the claims of the Government that Mr. Hussein

Ismail and Mr. Mohamed Ismail’s arrest was lawful and not arbitrary are questionable.

73.

Furthermore, had there been sufficient grounds to conclude that Mr. Hussein Ismail

and Mr. Mohamed Ismail “belonged to a terrorist organization”, the name of such

organization would have been cited. The arbitrary arrest of Mr. Hussein Ismail and

Mr. Mohamed Ismail is part of a broader pattern of imprisonment of innocent civilians to

instil fear and discourage the emergence of any critical voices that would threaten the security

and stability of the current military government. Since the 2015 amendments to the

Anti-Terrorism Law (Law No. 94 of 2015), which have excessively broadened the definitions

of “terrorist entity” and “terrorist act”, the direct and very flagrant consequence has been the

proliferation of arbitrary detentions and enforced disappearances, and intensified repression

of the fundamental freedoms of ordinary citizens. The terrorism charges brought against

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Mr. Hussein Ismail and Mr. Mohamed Ismail do not have an empirical or an evidential

grounding and are similar to those used against thousands of other detainees in a State

endeavour to demonstrate force and exercise societal control. All of this is anchored in a

broader context whereby in the past decade, the human rights situation in Egypt has

deteriorated to levels unseen in the country’s modern history. Countless violations, including

arbitrary arrests, indefinite detentions, military trials, torture, enforced disappearances and

extrajudicial killings, are committed by the State with total impunity – under the pretext of

maintaining order and security, when in reality the ultimate purpose has been to stifle human

rights.

(i)

Enforced disappearance and torture

74.

The Government of Egypt claims that Mr. Hussein Ismail and Mr. Mohamed Ismail

were brought before the Prosecution 24 hours after their arrest, accompanied by their lawyer,

in compliance with article 36 (1) of the Criminal Procedure Code as well as article 9 (2) and

(3) of the Covenant. The Government also claims that any physical injuries that might have

been found on Mr. Hussein Ismail and Mr. Mohamed Ismail were not related to and did not

result from the arrest. These claims fail to take into consideration the four days of enforced

disappearance to which they were subjected. In fact, Mr. Hussein Ismail and Mr. Mohamed

Ismail first appeared before the Prosecution on 30 December 2013, four days after their arrest

on 26 December 2013 at 2 a.m. at their family home. During their enforced disappearance,

they were interrogated about their journalist relative, his activities and his whereabouts,

without the presence of their lawyer. During those four days, Mr. Mohamed Ismail was

reportedly subjected to torture by means of beating, threats, insults, and electric shocks in

sensitive areas which resulted in visible physical injuries. Given the systematicity of enforced

disappearances following arrests, which have become almost mechanical and integral law

enforcement mechanisms, the claims of the Government of Egypt that Mr. Hussein Ismail

and Mr. Mohamed Ismail were brought before the Prosecution 24 hours following their arrest

is questionable.

(ii)

Independence, impartiality and competency of tribunals

75.

The Government of Egypt claims that the Public Prosecution is an independent and

impartial body that conducts investigations and that accordingly, Mr. Hussein Ismail and

Mr. Mohamed Ismail were granted the right to defend themselves and to have their lawyer

defend their case. The source argues that the trial of Mr. Mohamed Ismail and Mr. Hussein

Ismail that took place on 22 October 2017 before the Terrorism Criminal Court was unfair

and lacked due process guarantees, in contravention of article 14 of the Covenant. The trial

was unfair and lacked due process guarantees, as it was a mass trial which intrinsically fell

short of complying with the principle of individual sentencing. By their nature, mass trials

undermine the right to individual adjudication, limit the right of access to lawyers, and

undermine the right of lawyers to engage in a complete and adequate defence of their clients.

According to the Cairo Declaration on Human Rights in Islam, adopted in 1990 by Egypt,

“liability is in essence personal”, which is a stipulation that the sentencing must also be

personal, a requirement fundamentally at odds with the nature of mass trials.

76.

The source notes that after one of the interrogation sessions, an official from the

judiciary told the lawyers of Mr. Mohamed Ismail and Mr. Hussein Ismail not to “try too

hard”, since the verdict had already been decided. Such comments cast doubt upon the

independence and impartiality of the court. On more general grounds, doubts have been cast

upon the judicial system in Egypt and its ability to deliver impartial justice. In fact, ties

between the Public Prosecutor’s Office, the executive branch, and different arms of the

criminal justice system, namely the police, prosecutors, the courts and prison staff, remain

concerning. In 2006, the then Special Rapporteur on the independence of judges and lawyers

expressed concern over the erosion of independence of the judiciary under the Mubarak

presidency. Such erosion has been exacerbated since the military coup d’état of 2013, as

claims of institutional independence (e.g. prosecutorial or judicial) have been progressively

dispelled.

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(iii)

Violation of the right to be free from torture and ill-treatment

77.

The Government of Egypt claims that torture is prohibited and denies all allegations

of torture against Mr. Hussein Ismail and Mr. Mohamed Ismail, which contradicts both their

testimonies and their families’ testimonies. The effectiveness of the anti-torture provisions in

Egypt is questionable. In fact, torture and ill-treatment of detainees remains a persistent

practice used by law enforcement officials against detainees, especially in the early stages of

investigations, and confessions obtained under duress continue to be accepted as evidence by

Egyptian courts.

(iv)

Violation of the right to health through deliberate medical negligence

78.

The Government of Egypt claims that the state of health of Mr. Mohamed Ismail and

Mr. Hussein Ismail is stable and that they receive regular and proper medical attention. This

contradicts their family’s testimonies that Mr. Mohamed Ismail is currently hanging on to

life by a thread as he is in immediate need of a “dilatation and grafting operation” due to his

deteriorating state of health. Mr. Hussein Ismail did not receive the proper treatment

following his surgery subsequent to his arrest. He has been systematically denied a medical

examination despite many requests for a medical assessment and treatment.

2.

Discussion

79.

The Working Group thanks the source and the Government for their submissions.

80.

In determining whether the deprivation of liberty of Mr. Hussein Ismail and

Mr. Mohamed Ismail is arbitrary, the Working Group has regard to the principles established

in its jurisprudence to deal with evidentiary issues. If the source has presented a prima facie

case for breach of international law constituting arbitrary detention, the burden of proof

should be understood to rest upon the Government if it wishes to refute the allegations. Mere

assertions by the Government that lawful procedures have been followed are not sufficient

to rebut the source’s allegations.7

81.

The source argues that the detention of Mr. Hussein Ismail and Mr. Mohamed Ismail

is arbitrary and falls under categories I and III. The Working Group will proceed to examine

these in turn.

(a)

Category I

82.

The source has argued that Mr. Hussein Ismail and Mr. Mohamed Ismail were

detained without an arrest warrant on 26 December 2013 and then subjected to enforced

disappearance. The Government has denied this and argued that they were arrested two years

later – in 2015. The Working Group notes that the source’s information is based on accounts

by many witnesses, including numerous family members. Moreover, the source refers to

specific days when Mr. Hussein Ismail and Mr. Mohamed Ismail appeared before the

Prosecutor (30 December 2013), names the detention facility (Giza Central Prison) and also

refers to the time when they were first allowed to see their families (mid-January 2014). At

the same time, the Government, which is in a position to fully investigate the matter and to

clarify the discrepancy, failed to do so. In these circumstances, the Working Group cannot

but accept the source’s version of events.

83.

The Working Group recalls that a detention is considered arbitrary under category I if

it lacks legal basis. As it has previously stated, for a deprivation of liberty case to have a legal

basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must

invoke that legal basis and apply it to the circumstances of the case.8 This is typically done

through an arrest warrant or arrest order (or equivalent document).9 In addition, any form of

detention or imprisonment should be ordered by, or be subjected to, the effective control of

a judicial or other authority under the law, whose status and tenure should afford the strongest

possible guarantees of competence, impartiality and independence, in accordance with

7 A/HRC/19/57, para. 68.

8 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.

9 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests

made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.

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13

principle 4 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment. The Working Group finds that this was denied to Mr. Hussein

Ismail and Mr. Mohamed Ismail, in violation of articles 3 and 9 of the Universal Declaration

of Human Rights and article 9 (1) of the Covenant.

84.

The Working Group further finds that these two individuals were subjected to de facto

enforced disappearance in breach of article 9 (1) of the Covenant. Enforced disappearances

are prohibited by international law and constitute a particularly aggravated form of arbitrary

detention.10 Mr. Hussein Ismail and Mr. Mohamed Ismail thus were also placed outside the

protection of the law, in violation of their right to be recognized as persons before the law

under article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant.

85.

Furthermore, the Working Group recalls that article 9 (2) of the Covenant requires

that anyone who is arrested is not only informed of the reasons for the arrest but is also

promptly informed of any charges against them. The right to be promptly informed of charges

concerns notice of criminal charges, and as noted by the Human Rights Committee in its

general comment No. 35 (2014), this right “applies in connection with ordinary criminal

prosecutions and also in connection with military prosecutions or other special regimes

directed at criminal punishment”.11

86.

It appears that, being initially arrested on the basis of their family ties as a reprisal

against their family member,12 Mr. Hussein Ismail and Mr. Mohamed Ismail were ultimately

accused of being members of a terrorist group without the name of the group even being

mentioned, and in the absence of any explanation from the Government regarding the claim

that they were only arrested in 2015, the Working Group concludes that there has been a

breach of article 9 (2) of the Covenant.

87.

The Working Group also recalls that it is a well-established norm of international law

that pretrial detention is to be the exception and not the rule, and that it should be ordered for

as short a time as possible.13 Article 9 (3) of the Covenant provides that it shall not be the

general rule that persons awaiting trial shall be detained, but release may be subject to

guarantees to appear for trial and at any other stage of the judicial proceedings. It follows that

liberty is recognized as a principle and detention as an exception, in the interests of justice.

In the present case, the above-mentioned individuals were kept in pretrial detention for about

four years before being convicted in 2017, and no alternative preventive measure was ever

examined. Moreover, the Working Group notes the source’s submissions about the

phenomenon known as “rotation”, whereby authorities either accuse political prisoners under

several cases, or, directly after their release, charge them under a new case, which it has

previously criticized in its opinions in respect of Egypt.14

88.

Furthermore, according to article 9 (3) of the Covenant, anyone arrested or detained

on a criminal charge is to be brought promptly before a judge. As the Human Rights

Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing

a detainee “promptly” before a judge following his or her arrest, and any longer delay must

remain absolutely exceptional and be justified under the circumstances.15 In the present case,

Mr. Hussein Ismail and Mr. Mohamed Ismail did not appear to have been brought before a

judicial authority within 48 hours of their arrest, in violation of article 9 (3) of the Covenant.

10 Opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and

No. 25/2022; see also Human Rights Committee, general comment No. 35 (2014), para. 17.

11 Human Rights Committee, general comment No. 35 (2014), para. 29.

12 See opinion No. 42/2023, in which the Working Group found a similar situation to be a case of guilt

by association and recalled that no one should be deprived of their liberty for crimes, real or not,

committed by a family member by birth or marriage, in a free, democratic society.

13 Opinions No. 8/2020, para. 54; No. 1/2020, para. 53; No. 57/2014, para. 26; No. 49/2014, para. 23;

and No. 28/2014, para. 43; see also Human Rights Committee, general comment No. 35 (2014),

para. 38; and A/HRC/19/57, paras. 48–58.

14 See, among others, opinions No. 79/2021; No. 53/2022, para. 73; No. 60/2022, para. 74; and

No. 20/2023, para. 75.

15 Human Rights Committee, general comment No. 35 (2014), para. 33; and CAT/C/GAB/CO/1,

para. 10.

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89.

Noting all of the above, the Working Group considers that, in the arrest and pretrial

detention of Mr. Hussein Ismail and Mr. Mohamed Ismail, the Government acted contrary to

articles 3, 6 and 9 of the Universal Declaration of Human Rights, articles 9 and 16 of the

Covenant, and principles 11, 37 and 38 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.

90.

Accordingly, the Working Group considers that their arrest and subsequent detention

were arbitrary under category I.

(b)

Category III

91.

The source argues that Mr. Hussein Ismail and Mr. Mohamed Ismail did not benefit

from a fair trial by an independent and impartial tribunal established by law, they were

subjected to enforced disappearance and acts of torture and ill-treatment, their right to family

visits was violated, they did not have access to legal counsel, and their right to health was

violated.

92.

The Government denied these allegations, stating that the persons concerned were

tried by a competent tribunal, had full access to legal assistance and did not demonstrate any

signs of ill-treatment.

93.

The Working Group recalls principle 9 and guideline 8 of the United Nations Basic

Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before a Court, according to which persons deprived of

their liberty have the right to legal assistance by counsel of their choice at any time during

their detention, including immediately after the moment of apprehension, and that such

access is to be provided without delay. The Working Group finds that the enforced

disappearances and incommunicado detentions that both Mr. Hussein Ismail and

Mr. Mohamed Ismail were subjected to, as the Working Group has established, by definition

deprived them of their right to legal counsel at a critical stage of the criminal proceedings

and exposed them to a risk of coercion, which according to the source indeed took place.

94.

Holding an accused person incommunicado at the crucial initial period of detention

violates the essence of the right to legal assistance and to prepare a defence and the principle

of equality of arms, guaranteed under articles 10 and 11 (1) of the Universal Declaration of

Human Rights and article 14 (3) (b) of the Covenant. The Working Group considers that

these violations substantially undermined and compromised Mr. Hussein Ismail and

Mr. Mohamed Ismail’s capacity to participate effectively in any court proceedings that could

arise. This was further exacerbated by the fact that the charges against them were completely

changed after they had been in detention for about two years – the period denied by the

Government – which only proves that they were not afforded any tangible possibility to

defend themselves against the initial charges which appeared to serve as a pretext for their

detention.

95.

The Working Group stresses that, under international human rights law, all detained

and imprisoned individuals have the right to communicate with and be visited by their

families. The right to receive visits applies to all detainees, regardless of the offence of which

they are suspected or accused. According to principle 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment, this right may only

be subject to conditions and restrictions as specified by law or lawful regulations. However,

both petitioners were held incommunicado during the initial period of their detention.

96.

The Working Group also expresses its gravest concern at the allegations that

Mr. Mohamed Ismail was subjected to torture, which included beating, electric shocks and

other forms of ill-treatment, during his enforced disappearance, and that Mr. Hussein Ismail

was subjected to ill-treatment by prison riot forces for participating in a hunger strike to

protest against his detention conditions.

97.

Although the Government denied these allegations, it failed to provide the Working

Group with any proof to the contrary, for example a medical certificate. In the Working

Group’s view, not only is torture a grave violation of human rights per se, but it seriously

undermines the ability of persons to defend themselves and hinders their exercise of the right

to a fair trial, especially in the light of the right, under article 14 (3) (g) of the Covenant, not

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15

to be compelled to testify against oneself or to confess guilt. The alleged treatment reveals a

prima facie breach of the absolute prohibition of torture, which is a peremptory norm of

international law, and of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, principle 6 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment, and rule 1 of the

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson

Mandela Rules).

98.

The Working Group further notes that both Mr. Mohamed Ismail and Mr. Hussein

Ismail spent about four years in pretrial detention. The Working Group recalls that the right

of the accused to be tried without undue delay, set out in article 14 (3) (c) of the Covenant,

is designed not only to avoid keeping persons too long in a state of uncertainty about their

fate and, if held in detention during the period of the trial, to ensure that such deprivation of

liberty does not last longer than necessary in the circumstances of the specific case, but also

to serve the interests of justice. The Working Group has been presented with no reasons to

justify such delays. It therefore finds a violation of article 14 (3) (c) of the Covenant.

99.

Lastly, the Working Group notes the allegation, which was not denied by the

Government, that Mr. Mohamed Ismail and Mr. Hussein Ismail were tried in a mass trial. As

the Working Group has emphasized, mass trials are incompatible with the interests of justice

and do not meet the standards of a fair trial, since they risk seriously jeopardizing the rights

of the accused and preclude an individualized assessment of their culpability beyond

reasonable doubt.16 In the present case, the Working Group is concerned that these risks

might have materialized.

100.

Noting all of the above, the Working Group concludes that the violations of

Mr. Mohamed Ismail and Mr. Hussein Ismail’s right to a fair trial under article 14 of the

Covenant and articles 10 and 11 of the Universal Declaration of Human Rights were of such

gravity as to render their detention arbitrary, falling under category III.

(c)

Concluding remarks

101.

Referring to the allegations that Mr. Hussein Ismail suffered complications following

his surgery due to the lack of proper treatment and that Mr. Mohamed Ismail’s health severely

deteriorated and he urgently requires another operation, the Working Group wishes to remind

the Government that, in accordance with article 10 of the Covenant, all persons deprived of

their liberty must be treated with humanity and with respect for the inherent dignity of the

human person, and that denial of medical assistance constitutes a violation of the Nelson

Mandela Rules – of rules 18, 22, 24, 25, 27, 30 and 42 in particular – as well as of principle 24

of the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.

102.

The Working Group notes that the present opinion is only one of many opinions in

recent years in which it has found the Government to be in violation of its international human

rights obligations.17 It is concerned that this indicates a systemic problem with arbitrary

detention in Egypt, which, if it continues, may amount to a serious violation of international

law. 18 The Working Group recalls that, under certain circumstances, widespread or

systematic imprisonment or other severe deprivation of liberty in violation of the rules of

16 Opinions No. 65/2019, para. 75; No. 5/2020, para. 86; No. 41/2020, para. 73; No. 67/2020, para. 85;

and No. 9/2023, paras. 89–91.

17 See, for example, opinions No. 6/2016, No. 7/2016, No. 41/2016, No. 42/2016, No. 54/2016,

No. 60/2016, No. 30/2017, No. 78/2017, No. 83/2017, No. 26/2018, No. 27/2018, No. 47/2018,

No. 63/2018, No. 82/2018, No. 87/2018, No. 21/2019, No. 29/2019, No. 41/2019, No. 42/2019,

No. 65/2019, No. 77/2019, No. 6/2020, No. 14/2020, No. 80/2020, No. 45/2021, No. 79/2021,

No. 83/2021, No. 23/2022, No. 34/2022 and No. 60/2022.

18 Opinions No. 47/2018, para. 85; and No. 14/2020, para. 74.

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international law may constitute crimes against humanity.19 The Working Group has alluded

to this possibility in its past cases concerning Egypt.20

3.

Disposition

103.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Hussein Abdelrazek Abdelhafez Ismail and Mohamed

Abdelrazek Abdelhafez Ismail, being in contravention of articles 3, 6, 9, 10 and 11 of

the Universal Declaration of Human Rights and articles 9, 14 and 16 of the

International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I and III.

104.

The Working Group requests the Government of Egypt to take the steps necessary to

remedy the situation of Mr. Hussein Ismail and Mr. Mohamed Ismail without delay and bring

it into conformity with the relevant international norms, including those set out in the

Universal Declaration of Human Rights and the International Covenant on Civil and Political

Rights.

105.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Hussein Ismail and Mr. Mohamed

Ismail immediately and accord them an enforceable right to compensation and other

reparations, in accordance with international law.

106.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Hussein Ismail and Mr. Mohamed Ismail and to take appropriate measures against those

responsible for the violation of their rights.

107.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

4.

Follow-up procedure

108.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Hussein Ismail and Mr. Mohamed Ismail have been released and,

if so, on what date;

(b)

Whether compensation or other reparations have been made to them;

(c)

Whether an investigation has been conducted into the violation of their rights

and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Egypt with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

109.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

110.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

19 A/HRC/13/42, para. 30; see also, for example, opinions No. 1/2011, para. 21; No. 51/2017, para. 57;

and No. 56/2017, para. 72.

20 See, for example, opinions No. 60/2016, para. 27; No. 26/2018, para. 81; No. 27/2018, para. 83;

No. 29/2019, para. 69; No. 65/2019, para. 87; No. 79/2020, para. 49; No. 53/2022, para. 95;

No. 12/2023, para. 107; No. 20/2023, para. 85; and No. 26/2023, para. 94.

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17

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as of any failure to take action.

111.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.21

[Adopted on 15 November 2023]

21 Human Rights Council resolution 51/8, paras. 6 and 9.